May a lawyer advise a client to “clean up” social media pages by removing photos, videos, and other information that are “directly related to the incident for which the lawyer is retained?” Yes, according to an ethics opinion that the Florida Bar Board of Governors approved on October 16, 2015. See Op. No. 14-1, Professional Ethics of the Florida Bar (Jun. 25, 2015, approved Oct. 16, 2015). According to the opinion, a lawyer:
may advise that a client change privacy settings on the client’s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, [a lawyer] also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as the social media information or data is preserved.
This Florida opinion is consistent with North Carolina Formal Ethics Opinion 5, (July 25, 2014). In that opinion, the North Carolina State Bar concluded that a lawyer may advise a client to take down information on social media—but only if removal does not amount to spoliation of evidence and is not otherwise illegal.
What is “spoliation”? Under Louisiana law, the term “spoliation of evidence” refers to “an intentional destruction of evidence for purpose of depriving opposing parties of its use.” Pham v. Contico International, Inc., 759 So. 2d 880, 882 (La. Ct. App. 5th Cir. 2000) (citing Hooker v. Super Products Corp., 751 So. 2d 889 (La. Ct. App. 5th Cir. 1999); Kammerer v. Sewerage and Water Board of New Orleans, 633 So. 2d 1357 (La. Ct. App. 4th Cir. 1994)). The Pham court noted that “the tort of spoliation of evidence has its roots in the evidentiary doctrine of ‘adverse presumption,’ which allows a jury instruction for the presumption that the destroyed evidence contained information detrimental to the party who destroyed the evidence unless such destruction is adequately explained.” Id. (citing Randolph v. General Motors Corp., 646 So. 2d 1019 (La. Ct. App. 1st Cir. 1994)).